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[2015] ZAECBHC 33
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Myoli and Another v Director of Public Prosecutions, Eastern Cape and Others (593/2014) [2015] ZAECBHC 33 (22 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BISHO)
CASE
NO. 593/2014
In the matter between:
UNATHI
MYOLI
1
st
Applicant
SIYANDA
NOBHATYI
2
nd
Applicant
And
THE
DIRECTOR OF PUBLIC PROCECUTIONS,
EASTERN
CAPE
1
st
Respondents
THE
DIRECTOR OF PUPLIC PROSECUTIONS,
BISHO
2
nd
Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT AND
CORRECTIONAL
SERVICES
3
rd
Respondent
THE
SPEAKER OF THE NATIONAL
PARLIAMENT
4
th
Respondent
THE
MINISTER OF POLICE
5
th
Respondent
NATIONAL
COMMISSIONER OF THE
SOUTH
AFRICAN POLICE SERVICES
6
th
Respondent
CAPTEIN
BUYS
7
th
Respondent
THE
PROVISIONAL CO-ORDINATOR FOR
SECTION
252A AUTHORITY, SOUTH
AFRICAN
POLICE SERVICES, ZWELITSHA
8
th
Respondent
JUDGMENT
ALKEMA J
[1] The two applicants
are police officers and members of the South African Police Services
(SAPS). They are also two accused
persons who stand charged for
dealing in drugs. Their trial in the Regional Court stands
adjourned to the end of October
2015 pending the outcome of this
application. The evidence already adduced includes the setting
of a trap upon which the
State intends to rely for a conviction.
[2] Section 252A of the
Criminal Procedure Act 51 of 1977 (CPA) permits the use of a trap or
engaging in undercover operations in
order to detect, investigate or
uncover the commission of an offence.
[3] The applicants seek
orders declaring section 252A to be unconstitutional; to review, set
aside and declare unconstitutional
the decision of the first
respondent in approving an application for authority to make use of a
trap and an uncover operation known
as “
Cooler Bag”
in
terms of section 252A; and certain other ancillary relief.
[4] Mr
Zilwa
SC,
who appeared for the applicants, in essence relied on section 35 (3)
of the constitution which provides that:
“
Every
accused person has a right to a fair trial, which includes the right
… (h) to be presumed innocent, to remain silent,
and not to
testify during the proceedings.”
[5] Mr
Zilwa
SC
accordingly submitted that evidence of a trap and undercover agents
in an operation to investigate a crime in general
constitute an
infringement of the right to a fair trial as meant by section
35 (3) of the constitution.
[6] The first respondent
is the Director of Public Prosecutions, Eastern Cape, and the seven
other respondents are all interested
State organs who have an
interest in the matter.
[7] The applicants have
belatedly served and filed a replying affidavit and launched an
application for the condonation of such
late filing and service.
Pursuant to an order I made at the outset of the hearing, the main
application is now procedurally
in order and may be disposed off with
the replying affidavit as part of the papers.
[8] It is necessary to
set out section 252A in its entirety:
“
252A
(1)
Any law enforcement officer, official of the State
or any other
person authorised thereto for such purpose (hereinafter referred to
in this section as an official or his or her agent)
may make use of a
trap or engage in an undercover operation in order to detect,
investigate or uncover the commission of an offence,
or to prevent
the commission of any offence, and the evidence so obtained shall be
admissible if that conduct does not go beyond
providing an
opportunity to commit an offence: Provided that where the conduct
goes beyond providing an opportunity to commit an
offence a court may
admit evidence so obtained subject to subsection (3).
(2)
In considering the question whether the conduct goes beyond providing
an opportunity
to commit an offence, the court shall have regard to
the following factors:
(a)
Whether, prior to the setting of a trap or the use of an undercover
operation,
approval, if it was required, was obtained from the
attorney-general to engage such investigation methods and the extent
to which
the instructions or guidelines issued by the
attorney-general were adhered to;
(b)
the nature of the offence under investigation, including-
(i)
whether the security of the State, the safety of the public, the
maintenance of public order or the national economy is seriously
threatened thereby;
(ii)
the prevalence of the offence in the area concerned; and
(iii)
the seriousness of such offence;
(c)
the availability of other techniques for the detection, investigation
or uncovering
of the commission of the offence or the prevention
thereof in the particular circumstances of the case and in the area
concerned;
(d)
whether an average person who was in the position of the accused,
would
have been induced into the commission of an offence by the kind
of conduct employed by the official or his or her agent concerned;
(e)
the degree of persistence and number of attempts made by the official
or his
or her agent before the accused succumbed and committed the
offence;
(f)
the type of inducement used, including the degree of deceit,
trickery,
misrepresentation or reward;
(g)
the timing of the conduct, in particular whether the official or his
or
her agent instigated the commission of the offence or became
involved in an existing unlawful activity;
(h)
whether the conduct involved an exploitation of human characteristics
such
as emotions, sympathy or friendship or an exploitation of the
accused's personal, professional or economic circumstances in order
to increase the probability of the commission of the offence;
(i)
whether the official or his or her agent has exploited a particular
vulnerability
of the accused such as a mental handicap
or a substance
addiction;
(j)
the proportionality between the involvement of the official or his or
her agent as compared to that of the accused, including an assessment
of the extent of the harm caused or risked by the official
or his or
her agent as compared to that of the accused, and the commission of
any illegal acts by the official or his or her agent;
(k)
any threats, implied or expressed, by the official or his or her
agent
against the accused;
(l)
whether, before the trap was set or the undercover operation was
used,
there existed any suspicion, entertained upon reasonable
grounds, that the accused had committed an offence similar to that to
which the charge relates;
(m)
whether the official or his or her agent acted in good or bad
faith
or
(n)
any other factor which in the opinion of the court has a bearing on
the question.
(3)
(a) If a court
in any criminal proceedings finds that in the setting of a trap
or the engaging in an undercover operation the
conduct goes beyond
providing an opportunity to commit an offence, the court may refuse
to allow such evidence to be tendered or
may refuse to allow such
evidence already tendered, to stand, if the evidence was obtained in
an improper or unfair manner and
that the admission of such evidence
would render the trial unfair or would otherwise be detrimental to
the administration of justice.
(b)
When considering the admissibility of the evidence the court
shall
weigh up the public interest against the personal interest of the
accused, having regard to the following factors, if applicable:
(i)
The nature and seriousness of the offence, including-
(aa)
whether it is of such a nature and of such an extent that the
security of the State,
the safety of the public, the maintenance of
public order or the national economy is seriously threatened thereby;
(bb)
whether, in the absence of the use of a trap or an undercover
operation, it would be difficult
to detect, investigate, uncover or
prevent its commission;
(cc)
whether it is so frequently committed that special measures are
required to detect, investigate
or uncover it or to prevent its
commission; or
(dd)
whether it is so indecent or serious that the setting of a trap or
the engaging of an
undercover operation was justified;
(ii)
the extent of the effect of the trap or undercover operation upon the
interests
of the accused, if regard is had to-
(aa)
the deliberate disregard, if at all, of the accused's rights or any
applicable legal
and statutory requirements;
(bb)
the facility, or otherwise, with which such requirements could have
been complied
with, having regard to the circumstances in which the
offence was committed; or
(cc)
the prejudice to the accused resulting from any improper or unfair
conduct;
(iii)
the nature and seriousness of any infringement of any fundamental
right contained
in the Constitution;
(iv)
whether in the setting of a trap or the engagement of an undercover
operation the
means used was proportional to the seriousness of the
offence; and
(v)
any other factor which in the opinion of the court ought to be taken
into account.
(4)
An attorney-general may issue general or specific guidelines
regarding the
supervision and control of traps and undercover
operations, and may require any official or his or her agent to
obtain his or her
written approval in order to set a trap or to
engage in an undercover operation at any place within his or her area
of jurisdiction,
and in connection therewith to comply with his or
her instructions, written or otherwise.
(5)
(a)
An official
or his or her agent who sets or participates in a trap or
an undercover operation to detect, investigate or uncover
or to obtain evidence of or to prevent the commission of an offence,
shall not be criminally liable in respect of any act which
constitutes an offence and which relates to the trap or undercover
operation if it was performed in good faith.
(b)
No prosecution for an offence contemplated in paragraph (a) shall be
instituted
against an official or his or her agent without the
written authority of the attorney-general.
(6)
If at any stage of the proceedings the question is raised whether
evidence
should be excluded in terms of subsection (3) the burden of
proof to show, on a balance of probabilities, that the evidence is
admissible, shall rest on the prosecution:
Provided that the
accused shall furnish the grounds on which the admissibility of the
evidence is challenged: Provided further that
if the accused is not
represented the court shall raise the question of the admissibility
of the evidence.
(7)
The question whether evidence should be excluded in terms of
subsection
(3) may, on application by the accused or the prosecution,
or by order of the court of its own accord be adjudicated as a
separate
issue in dispute.”
[9] The guidelines
referred to in sub-section (4) have been issued by all Directors of
Public Prosecutions in South Africa jointly,
including the First
Respondent, on 4 June 2004 and are part of the application papers.
It is unnecessary to detail such guidelines
in this judgment.
Suffice to say that the guidelines require the approval of the first
respondent, which was sought and obtained.
All other guidelines
have been complied with.
[10] The legal profession
in South Africa has for a long time been grappling with the moral,
ethical and jurisprudential obstacles
raised by the entrapment
system. Theoretically, the State provokes a law-abiding citizen
to commit a crime. Sometimes
the trap creates the opportunity
for someone who, but for the trap, would not have committed the
crime, as was the case in
S v Malinga
1963 (1) SA692 (a) AT
693G.
[11] Section 252A adopts
the recommendations of the law commission dated 28 December 1994.
A reading of these recommendations
clearly show, in my view, that the
drafters of the report had regard to the Bill of Rights, including
the right to a fair trial,
then embodied in the interim constitution.
[12] Section 252A was
inserted into the CPA by s.1 of Act 85 of 1996. It did not
introduce a general defence of entrapment
in South Africa.
Rather, it introduced an exclusionary rule of evidence to deal with
the problems relating to the use of
traps. (That was also the
approach in Australia, United Kingdom and Singapore.)
Accordingly, if the conduct surrounding
the setting of the trap does
not go beyond providing an opportunity to commit an offence, the
evidence so obtained shall be admissible.
If the conduct goes
beyond providing an opportunity to commit an offence, the court may
refuse to allow such evidence to be tendered
or may refuse to allow
such evidence already tendered to stand, if the evidence was obtained
in an improper or unfair manner
or would otherwise be
detrimental to the administration of justice (sub-section (3 (a)).
[13] Of course,
subsection (1) read with sub-section (3) must always be read subject
to the constitution. The relevant parts
of the constitution are
these:
[14] Section 1which
provides that the constitution is the supreme law of the Republic,
and that “…
law or conduct inconsistent with it is
invalid.”
[15] Section 35 (3) which
gives every accused the right to a fair trial, read with sub-section
(5) which provides that “…
evidence obtained in a
manner that violates any right in the Bill of Rights must be excluded
if the admission of that evidence would
render the trial unfair or
otherwise be detrimental to the administration of justice.”
[16] Section 36 which
deals with the limitation of rights to the extent that such
limitation is reasonable and justifiable in an
open and democratic
society based on human dignity, equality and freedom, taking the
relevant factors into account.
[17] Section 172 empowers
the High Court to make an order concerning the constitutional
validity of an Act of Parliament.
[18] It must be borne in
mind that the applicants are not asking this Court to review the
trial court’s enforcement or interpretation
of section 252A,
and this is not an appeal against the manner of enforcement of
section 252A. This is an application to declare
section 252A
per se
unconstitutional, subject to confirmation by the
Constitutional Court. It is said to offend the right to a fair
trial; not
that the admission of certain evidence renders the trial
unfair. It is said to be unconstitutional by its very terms.
[19] For the reasons
which follow, I am unable to agree with Mr
Zilwa
SC’s
submissions. I am unable to find any sub-section of section
252A to be constitutionally invalid, nor am I able
to find that
section 252A as a whole offends any constitutional principle.
[20] The starting point
is to recognize that there is always tension between the public
interest on one hand; and the exercise of
private constitutional
rights on the other hand. In
casu,
between the use
of traps and the right to a fair trial.
[21] Public interest
demands that crime must be prevented and combated. In certain
cases the use of a trap may be the only
method of combating crime,
and the facts of this case show that this is one of those cases.
Evidence of members of the SAPS
committing crimes are on the increase
and public interest demand that such members be apprehended and
criminally charged.
Very often corrupt police officials can
only be arrested and successfully prosecuted if a trap was used.
If the use of a
trap is the only practical method of successfully
combatting crime and the evidence was obtained in a fair manner, then
public
interest demand that the evidence of a trap be admitted.
On the other hand, the use of a trap always has the potential to
limit the right to a fair trial, or to render a trial unfair.
[22] The constitution
explicitly recognize such tension and provides a mechanism under
section 36 to resolve the tension by, under
certain circumstances,
limiting the constitutional right. In this sense no
constitutional right is absolute.
[23] It is now trite law
that the limitation of rights under section 36 gives rise to two
stages of enquiry. The first stage
is to determine whether the
right in question − in
casu
the right to a fair trial –
is infringed. The second is to determine whether that
infringement can be justified as
a reasonable limitation of the
right. (
S v Zuma nd others
[1995] ZACC 1
;
1995 (4) BCLR 401
(SA at
414.)
[24] In regard to the
first stage of the enquiry, the fairness of the trial will depend on
the outcome of the operation of s.252A.
If evidence which will
render the trial unfair is admitted, there will be an infringement of
the right. If the evidence is
excluded, the trial will not be
unfair. But those issues are not before me. What is
before me is the constitutionality
of the terms of section 252A.
The exclusionary nature of the terms and of the proper operation of
section 252A cannot be
said to be unfair or said to infringe any
constitutional right. The section specifically excludes any
evidence which will
render the trial unfair or detrimental to the
administration of justice. And if the conduct does not go
beyond providing
an opportunity to commit an offence, the very
mischief which arises from the use of a trap or undercover agent is
prevented and
the trial cannot be said to be unfair.
[25] Section 252A retains
the tension between the public interest to use a trap in certain
circumstances on the one hand, and the
right to a fair trial on the
other hand. To the extent that such tension may by the
operation of section 252A limit the right
to a fair trial, such
limitation cannot be unconstitutional in circumstances where section
36 of the constitution itself recognises
the tension and resultant
limitation of rights.
[26] I therefore come to
the conclusion that the terms of section 252A do not infringe upon
any constitutional right including the
right to a fair trial.
[27] Even if I am wrong
in the above finding and there is an infringement of the right to a
fair trial, I believe that having regard
to the public interest, such
infringement can be justified as a reasonable limitation under
section 36 of the constitution.
The terms of section 252A by
which evidence which may render the trial unfair or which may
infringe on the right to fair trial,
is excluded, are reasonable and
justifiable as meant by section 36. I therefore come to the
conclusion that the second stage
of the enquiry has been met.
[28] Mr
Zilwa
SC
submitted, in the alternative, that the wording of section 252A lacks
clarity and are in certain respects incomprehensible and
have
attracted justifiable criticism. In support of his submission
he referred to Du Toit
et al
in
Commentary on the
Criminal
Procedure Act
> at 24 -131;
S v Odengo
2001(1) SACR 560
(WLD) at 565(h)-568(c);
S v Kotze
2010 (1) SACR 100 (SCA) at
111 (para 20) and 113 (para 26). The criticism expressed in
these authorities includes the view
that in certain respects the
section may be unconstitutional.
[29] It does not follow
from criticism expressed in authorities that the section is
per se
unconstitutional.
[30] Applicant’s
case is that the entire
section 252A
is
per se
unconstitutional; not that certain parts or sub-sections are
unconstitutional. Should the applicants rely on the
unconstitutionality
of certain sub-sections or on the wording of
certain parts of the section, such wording or sub-sections must be
identified and
addressed. It is not sufficient to merely refer
a Court to criticisms expressed in other authorities.
[31] In any event,
constitutional interpretation has many tools which may be used to
avoid any potential unconstitutionality.
For instance, see
para.20 of the judgment of
Wallis
AJA (as he then was) in
Kotze
(
supra
). The entire
section 252A
must be
interpreted subject to the constitution including the right to a fair
trial and the limitation of such right under
section 36.
I
believe that the interpretation placed by
Wallis
AJA in
Kotze
(
supra
) on
section 252A
renders the section constitutional in
its entirety.
[32] In the circumstances
I believe this application must fail. I therefore make the
following order:
The application is
dismissed with costs, such costs to include the costs of the two
counsel.
ALKEMA J
Heard on 13 August 2015
Delivered on 22 September
2015
Counsel
for Applicants :
Adv.
P H S Zilwa SC
Instructed
by :
Makhanya
Attorneys
Counsel
for Respondents :
Adv.
A Beleveld SC
& Adv. M Pango
Instructed
by :
State
Attorney, East London